On 07/30/2010 10:12 AM, R. Brent Clements wrote:
> Actually, that is exactly what happens from all other points of view.
> If second buyer has a problem with a device the cannot usually go to
> the vendor for warranty claims. the warranty contract is between
> vendor and first buyer.
>> First buyer is the conveyor (to use the GPL license term) and the
> responsibility is on them to provide everything they got from the
> vendor when they sell it. If they lost the "source code cd" that came
> with it then the vendor is not required to replace it for the third
> party.
>> Brent
>>The warranty is a complicated issue. In fact warranty is one part of
product liability and goes back to the manufacturer. So it might
not necessarily be the first buyer. The first buyer may be the importer,
or the wholesales distributor, or maybe the shop that sells the product.
(maybe if you replace buyer with consumer it might be more correct.
However, look at the warranty for a car. If you buy a car, drive it for
a month and sell it, the second consumer still has warranty rights from
the manufacturer).
This is even more complicated if you talk about damages caused by
the proper use of a product (i.e. a toaster burns down your house while use
according to the instructions, or even injures someone). For such damages to
any party, not only a buyer, can be claimed from not only the seller,
but also
the importer and manufacturer.
As can be seen here, third parties can certainly have rights given by
law (Due to privity principles they usually cannot have obligations).
Given this, a court would have to look at what is a reasonable
expectation. Is it reasonable that the first buyer expect in the case of
GPL that the first buyer can ask for a replacement of the source case
that they have lost (maybe for reasonable compensation of efforts).
Similarly, does the second buyer have a reasonable expectation to get
the source code directly from the vendor.
However, there is one more caveat in this. The second buyer obtains
through the GPL a direct permission by the vendor/copy right holder of
the software. It is not the first buyer that grants a permission to the
second buyer (except the software is modified, then we have actually two
separate licenses, i.e permissions). A court would have to determine
what reasonably is entailed in the direct GPL license. Only the right of
usage, or also the right to obtain the sources.
- Ralph